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Abstract

In the United States' system of separation of powers, the judiciary must safeguard the rights of individuals from abuses by the political branches of government. Yet, when it comes to matters touching foreign affairs, scholars such as John Yoo and jurists such as Antonin Scalia argue that the executive branch is entitled to virtually unreviewable discretion. They point to Navy v. Egan for support. There, the Court held that an administrative body that hears appeals from adverse actions against government employees was precluded from reviewing the merits of security clearance determinations because the executive branch deserves "super-strong" deference in foreign affairs. An examination of the disastrous consequences of Egan crystallizes the constitutional and functional arguments against "super-strong" deference to the executive-both in foreign affairs generally and in the security clearance process specifically. The case has prompted lower courts to deny plaintiffs an independent forum in which to bring constitutional claims related to security clearance denials and revocations. Egan's progeny flouts the longstanding principle that an individual who suffers a constitutional injury is entitled to an appropriate remedy. Furthermore, by abdicating its duty to check executive power in the security clearance context, the judiciary has fortified deficiencies inherent to executive agency decisionmaking, namely tunnel vision, path dependency, and imperialist tendencies. Abdication has also enabled a systematic denial of clearances to candidates with foreign connections. Without a diverse counterterrorism workforce, the United States lacks the operational proficiency and the legitimacy to wage a successful war on terrorism. This Note is the first to call on the judiciary to reclaim the right to exercise judicial review of the merits of security clearance determinations. Furthermore, it charts a path for lower courts to reopen judicial review of the merits of security clearance determinations, provide injured plaintiffs with a remedy, deter future racial discrimination, and avert a chilling effect on agency decisionmakers.

Citation

Jason Rathod,
Not Peace, but a Sword: Navy v. Egan and the Case Against Judicial Abdication in Foreign Affairs,
59 Duke Law Journal
595-635
(2009)
Available at: https://scholarship.law.duke.edu/dlj/vol59/iss3/5